*1 TATUM, Individually, Gloria and Gloria
Tatum, Mother, as Natural Guardian
Ad Litem and Next Friend of Rosbon Tatum, Jacqueline
Tatum and minor Tulsa, Oklahoma, City Petitioners, municipal corporation, TATUM, Bagby Court,
Respondents.
No. 54808.
Supreme Court Oklahoma.
May
Rehearing May Denied *2 policies
insurance each other’s life and co-obligors. incurred Gloria’s loans as two children the decedent’s name assumed both purposes. at school medical and for He Bales, Atty., City F. R. Waldo Victor equally and she contributed chil- Seagle, Tulsa, petitioner, Tulsa. City of support. dren’s At no time before the de- Malloy Malloy, Pat & Bruce 0. Malloy, previ- cedent died Gloria aware of his was Elder, Taliaferro, Taliaferro, R. Mal- James ous to Florine. ceremonial Elder, Tulsa, loy petitioners. & for other Grady’s As widow Gloria Russell, Payne, Payne E. Far- Charles & herself, his benefit claim child ber, respondents. City, Shy and for her other two children qua stepchildren. Florine also ALA, OP Justice: brought a as claim for death benefits the This case presents four issues: [1] Did surviving spouse. Neither decedent’s em- the trial tribunal use the the the two tribunal ficiaries of a death legal determining the self as the common-law of fee claimant us? dent’s deceased children We widow entitled awarded to counsel deserted correctly deny death present a reviewable answer the first worker? spouse? identity sought dependent stepchildren to an claim? [4] an wife wrong Does the amount [3] for a award as statutory award Did the [2] fourth issue before and for benefits successful criteria Was for her- bene- ques- dece- trial her the to in to the trial ployment nor rine and dent’s surviving spouse. controversy. award. Gloria and her other excluded. our review. The Grady The trial left Gloria, Gloria and tribunal judge found Florine no statutory his child, surviving spouse as accidental death only question well She and employer was the status of were both claimants. the as that of employer Shy, as children asserts granted and tendered Gloria’s was be the dece- were seek that Flo- in is survivor entitled to negative the tions in second and third Because the award is in the affirmative. benefits. unchallenged here, it we treat as final. By separate claims for death benefits Bagby Gloria Tatum [Gloria] each claimed to
Tatum [Florine] I. Grady surviving spouse of Tatum [dece- the trial tribunal Gloria contends on-the-job injuries. fatal who suffered dent] determining in used obsolete criteria married to the decedent Florine was She death award asserts beneficiaries. They together lived Texas until are that she and her two children about when he left the marital home. statutory provisions which He, she Gloria met the decedent January, in effect at decedent’s death children another her two in 1973. established a common household statutory scheme, pre-1977 Under year Grady’s she bore During the same law” of an “heir at had to be child, [Shy]. During the Shy-Easter Tatum The 1977 amend- employee.1 deceased period Gloria and the of their cohabitation “heir-at-law” re- away ments did with out as husband decedent held themselves replaced descrip- quirement. They property together, and wife. rented persons upon accounts, specific classes of charge bought tion joint established pendents’, provided shall Before under this its revision in as used pertinent part: The term Act, in this “In ‘Dependent’ shall O.S.1971 definitions mean and or ‘De- of Oklahoma. Citation to include defined fies section numbers in the Descent heirs [*] * at law of the material and Distribution Statutes Title 85. in the text identi- deceased, whom a came any legal claim benefits to be con- is without effect. We treat it as ferred.2 harmless error. argument Gloria advances her —that applied wrong legal trial pre- tribunal II. cepts firmly supported by one that is —as employer Both Gloria and the urge language judge’s finding in a trial *3 in finding error the trial tribunal’s that
which recites that the “deceased left as his “surviving spouse”. Florine was the Flo only dependent sole and heirs at law Flo- rine’s status is judge’s rested on the trial ..., , rine surviving spouse determination that she had been “deserted” daughter”. [Emphasis added]. by the in decedent 1971. The workers’ persuaded We are not because from oth- compensation expressly provides that findings er made in the order it is clear the employee’s spouse, an although living alone upon currently award was rested effective at the time of the worker’s may, judge’s standards. The trial or- desertion, occupy reason of the status of der found that Florine’s status was that of “surviving spouse”. O.S.Supp.1977 “legal a wife” who lived A(2). decedent because of his desertion. also although “proved pri- recited that Gloria disputes Neither Gloria nor the employer ma facie case of marriage”, common law that Florine inwas fact abandoned. Their occupy she did not “surviving spouse” contention is that Florine had lost her stat- status and her two children could not claim utory qua status deserted wife. This is so dependent stepchildren because of the pursue because she failed either to her subsisting legal marriage to Flo- husband with a bringing view to him back rine, spouse. his deserted Both the charac- home or failed to follow him in his travels. ter and the amount of benefits allowed Lack of bring active efforts to about the Florine and clearly reflect that spousal separation, end of they urge, award was bottomed on the 1977 revisions. acquiescence amounts to Florine’s Under the schedule of desertion and is fatal to her claim under apportioned fixed amount had to among be the statute. beneficiaries,3 the authorized while the spouse required deserted is not provide only lump- amendments “dog” footsteps her husband’s in an payment sum end- continuing but also quest less to achieve that are measured reunion.5 his es- average-weekly- wage lifestyle statutory lump- formula.4 Both a tablished the husband revealed a award, sum applicable based on the predisposition wandering, sched- short-term em- ule, properly-computed weekly compen- ployment, jobs discontent with and instabil- payments sation granted. ity. job Florine’s own and the house she purchased represented had no doubt her clearly Because the order indicates that only security. The law would indeed be the amendments effective at decedent’s both inastute and unrealistic if it expected death were considered and followed de- only precious posses- a wife to abandon her termining eligibility each claimant’s quest sions a fruitless after benefits, an errant lone reference the order to given husband who had no indication “heirs at of his law” must be treated an inad- vertent desire to stay. use of the obsolete terminolo- return and Florine’s now status gy. surplusage Its spouse inclusions is mere as a deserted was not lost either provisions O.S.Supp.1977 2.Pertinent of 85 ceives one-half * * employee; are: "A. In to death benefits under the *”. defi- 22(7-8). O.S.Supp.1975 3. 85 ‘Actually dependent’ nitions shall surviving spouse means: a. a defined this 22(8-11). O.S.Supp.1977 § 4. section; section; b. a child as defined in this or person dependent c. Ga.App. 5. Gibbons v. Atlantic Steel and refers who re- 183 S.E.2d acts, Affirmative III. non-pursuit.6 inaction separate suing for divorce or main- such as Gloria contends that she and two tenance, resistance to reconciliation active were entitled to death bene of her children efforts, or cohabitation with another surviving fits as decedent's wife and either changed of a character indicative stepchildren dependents. as his relationship. They are all absent spousal of Gloria’s claim is that at his death basis legal change might also in this case. A in a she and the decedent lived common-law separation through a formal manifest itself marriage in which her children were de agreement, join when- refusal to him for pendent upon more than half arise, or opportunity may some ever The fact of her described support. their recognition that the mar- other outward relationship the decedent is not dis Flo- riage relationship had come to an end. puted. At issue are the attributes of things. rine did none of these their interaction. *4 marriage in and their before Since person may one separation, the decedent the critical 1971 recognized legal spouse of anoth- other Florine on numerous had abandoned relationship with the decedent er.7 Gloria’s always came then he occasions. Until legal earmarks of a would bear all the it finally he left was back. When marriage if it were not for his valid at and while Florine was without notice A cer- undissolved union with Florine. thought he she knew where work. She a marriage emonial that followed valid and long sure he was she was not how went but undissolved common-law would years he stay away. Over the going to Although in a equally have void.8 been times. He with her several communicated marriage-like rela- few states a a her on several occa- returned to see even person9 tionship already married with sions, Although stay. but never applicable compensation, the recover left, made it why Grady she didn’t know jurisdictions are broader statues in those home. always welcome clear that he was Moreover, they include than Oklahoma’s. issue. He not force the felt she could She authorizing recovery by specific provisions In ready back. to be to come had persons those, of an additional class — they meantime, the home she maintained relative, legal spouse or blood who than a together kept her occupied previously dependent upon employee actually providing of herself with job as a means counterpart support. There is no for their not initiated a divorce She had livelihood. similarly en- provision in Oklahoma which nor, knowledge, had he to her suit claimants. of authorized larges the class against her. one 3.1, provided, revisions The 1977 finding that Florine judge’s The trial “actually de- categories persons three spousal survivor decedent’s deserted These eligibility sense. pendent” in the on com- by to benefits rests statute entitled (a) surviving spouse,10 categories are legal er- and is free petent evidence (c) person de- (b) “any other child11 ror. A(2) Donovan, "surviving spouse” 3.1§ is defined F.Supp. 10. A Shipping Co. v. Lavino 6. living actually spouse or employee’s [E.D.Pa.1958]; Creasey, Creasey as “the dependent upon v. of his at the time Mo.App. 227-228 151 S.W. 334, 337, living apart for Lawson, injury or or S.Ct. Thompson U.S. v. employ- of desertion 555, 557, reason cause 98 L.Ed. ee”. Whitney, Whitney Okl. A(3) as "... a A “child” is defined [1942]. adopted daughter son of or the em- age years The eighteen ... ployee Okl., Row, P.2d 203 Parkhill Truck Co. v. actually dependent ... an ‘child’ includes term actually dependent acknowl- stepchild or an This case edged out of wedlock”. child bom So.2d 1031 v. Travelers Ins. Henderson pass the constitution- Botham, require us to not [La.1978]; does ality 27 Cal.2d Rivieccio v. legislative provisions that include of the 680 [Cal.1946]. pendent employee”.12 and her reject- claim to benefits must be qualifying of the words statute —“with re- ed.16 The decedent had no to en- capacity spect that, require ter into a with Gloria while benefits” — giving meaning when spousal bond with Florine remained undis- scheme, compen- we look to the schedule of solved. non-spousal Decedent’s relation- 22(8-11) sation in for the both formula ship ripen legal with Gloria did not into a which to determine the amount of compen- union before his death.17 she Although beneficiary sation due each as well as for looked to partial sup- the decedent for her specific enumeration per- classes of port, capaci- she stand in spousal did not eligible for sons death benefits. Under ty. jure Her status but not de defacto surviving this section—in addition dependency does entitle her persons and children—the identified benefits.18 dependency to claim parents, are Gloria’s precluded two children are also brothers, sisters, grandparents grand- from receiving benefits. Since she did not general children.13 Our statute creates no in spousal relationship stand vis-a-vis the class of persons authorized claimants for deceased, Gloria’s children could not be actually depended on the decedent stepchildren. considered decedent’s De worker contributions but do dependency enough is not not fall to create recognized into of the three facto categories. recovery. basis for Some states compensa- have enacted statutes that allow *5 An provision additional contem —not tion to any child maintained in dece- plated by legislature be read —cannot dent’s any household or to one to whom the wording into the clear of a statute.14 If a parentis. decedent stood in loco de- Our recognized claimant does not fall within a pendency provisions do not extend that class, him, none can for be created no mat far.19 great may ter how need be. An at tempt usurp to power do so would There in denying was no error death legislature.15 benefits to Gloria and to her two children. persons These do not fall statu- Because of within to Florine, torily cognizable Gloria’s common-law class of claim- to authorized recognized him cannot be as a valid union ants. stepchildren among A(l)(c). O.S.Supp.1977 authorized claimants. Rob- 3.1 The lan- § narrow Merrill, Okl., 780, guage authorizing erts v. 386 P.2d 783-784 Art. amendment 23 footnote, 7, might preclude [1963]. See also infra note open-ended § 15. Okl.Const. dependency passing de scheme from con- facto A(l)(c) person §
12. 3.1 "re- Okl., Merrill, stitutional muster. Roberts v. 386 fers receives one-half 780, P.2d 784 [1963]. support employee". 237, Steckleberg, 16. Madison v. 224 P. "parents”, 13. definition of ‘brothers and [1924]; Okl., Zaring, 961 Marcum v. 406 P.2d sisters”, "grandchildren” "grandparents” and is 970, 973 [1965]. A(4), (5) found in § 3.1 Bonner, Okl., 687, Lopez v. P.2d 689 439 Stemmons, Inc. C.I.T. v. Universal Credit Cor- [1968]; Reichert, 704, In re 516 P.2d [Idaho 706 Okl., 212, poration, 216 1973]. Legislative power to fashion a substituted Holtzclaw, 4, Ga.App. 18. Rush v. 154 S.E.2d (i.e. wrongful remedy for death [1980]; Meade v. State death benefits under the Workers’ recoverable Commissioner, W.Va. S.E.2d Compensation Act) is derived from the 1950 775 [1962]. signifi- amendment to Art. Okl.Const. A §23 statutorily cant variance between the class of Corp. wrongful Pa. authorized (12 Renovich v. Bethlehem Mines claimants in death actions [1938]; 1054) Super. Kransky v. O.S. 1971 200 A. §§ 1053 and that in compensation proceedings would no Glen Alden Coal 354 Pa. 47 A.2d doubt arise Commission, recognize open-ended if we Campton were to that an de Industrial dependency created 106 Utah facto Among IV. matters. the innovations is a con- cept of dependency.1 that, Counsel for contends measured by the market value of the service that was It is inferred the majority opinion that rendered, the amount of counsel fee award- A(l)c may ignored 3.1 of title 85 be § ' representing him grossly ed her is inad- O.S.Supp.1977, under 85 22 no similar § equate. A(l)c reference to has been enacted. § is, course, There some reference to de- Because the award had pendency 8(a)] in 22 but the refer- § [see § timely proceed become final for want of a dependency ence to sharply is not so identi- ing challenging init this court and inas A(l)c. fied under 22 as in Actually 3.1 § § aggrieved much counsel did not file majority holds that “with name,20 petition for review in his own required benefits we are to look at properly issue tendered is not before us.21 compensation (85 the schedule O.S.Supp. granted No relief can be in this court to 1977, 22, 8-11)” and since the last men- § proceeding one who has not tioned provi- statute omits or makes little review.22 dependents receiving sion for one-half ( n ) or more of the from a deceased Award sustained.
employee, the conclusion is drawn that no authorized, paid. benefit is due or IRWIN, C.J., BARNES, V.C.J., and I myself cannot blind to the obvious en- LAVENDER, HARGRAVE and largement broadening of the “new WILSON, JJ., concur. particularly era” persons as to classes of HODGES, DOOLIN, JJ., SIMMS and enjoy entitled to death benefits in the face dissent. legislative provision simple of a forthright A(l)c. The mere fact or
DOOLIN, Justice, dissenting:
simply
repeated
because it is not
longer
the enactment of the
new Oklahoma
administrative
is no reason to
*6
Compensation
Chapter 234,
ignore
change
1977 Ses-
the
intended for Workers’
(effective
1,1978),
July
Legis- Compensation
sion
the
Law
claims. We are reminded
compensation
compensation
derogation
lature directed a new era in
claims are in
Co., Inc., Okl.,
file,
properly placed by
paperwork
20. Tisdale v. Wheeler Bros. Grain
been
the
on
1104,
[1979];
posture adversary
lawyer.
599 P.2d
1106
Conrad v. State
in a
to that of her
Commission,
324,
Co., supra
Industrial
73 P.2d
Tisdale v. Wheeler Bros. Grain
note
858,
860
State ex rel. Oklahoma Bar
Mason, Okl.,
961,
Association v.
380 P.2d
Buckler,
21;
supra
22.Ideal Cement Co. v.
note
Lee,
76,
Mining
M. & W.
Co. v.
Okl.
759, 761 [1947].
21. The issue could have been considered if the
aggrieved counsel had raised it in his own time
A(l)c:
O.S.Supp.1977,
1. 85
ly-filed petition
cross-petition
for review.
Commission, supra
Conrad v. State Industrial
respect
"A. In
under
benefits
the
21;
Compensation
note
Tisdale Wheeler Bros. Grain
Worker’s
defi-
20;
Buckler, Okl.,
supra
Ideal Cement Co. v.
note
nitions shall
828,
(1) "Actually dependent”
353 P.2d
means:
a.
...
cannot,
lawyer
appeal,
take more of the
b.
...
recovery
was allowed him
client’s
than
below
person dependent
c.
properly placed
unless he has
the client in an
upon
per-
and refers
adversary posture.
attempt
No
was made to do
son who receives one-half
lawyer
that here. The
did not more than add—
employee;
specification
general
as a
of error —his
claim to
larger
fee from all the clients and included
depend-
petition
brought by,
questions
relationship
that' in the
for review
B. All
of
for
of,
ency
and in the name Gloria and her two children.
shall be determined ... as of the time of
claim,
Shy,
purposes
With
fee
death
of income benefits for
whose
7,
recovery
larger
by
c.
§
sum was to be taken for the
'death. Amended
Laws
here,
lawyer,
July
does
eff.
not stand
nor has she ever
1978.”
right
common
action in the
Admittedly,
great
there is
variance with-
courts.2
fifty
acts of the
states.
I am
persuaded
nonetheless
that an en-
opine
seems safe to
that common law lightened, broadening
approach
and new
rules cannot be used to enforce or defeat a
was intended by
Legislature
the Oklahoma
claim under
Compensation
Law.3
new,
when
1977 it enacted a
basic act.
examples
As
approach
of the modem
to the
compenation
revisions
dependency versus
dichotomy,
heirs-at-law
July
which
went into effect
1978 were
sweeping
far-reaching.
see Neureither
Section 3.1 of
v. W.
O.S.Supp.1977 scrapped persons
Board,
denied
Cal.App.3d 429,
Cal.Rptr.
they
death
are not
benefits because
“heirs
(1971);
Barton-Marlow,
v.West
394 Mich.
3.1(A)(2)
at law.” Section
defines a “sur-